Bail
: The bail under CrPC is divided according to the types of offence alleged against the accused.The basic rules for grant or denial of bail may simply be summarized as:
1. There are only two kinds of offences under the criminal law, bailable offence and non-bailable offence.
2. In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973) bail has to be granted to the accused as it is a matter of right for the accused to demand and be granted bail.
3. In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court. Only condition is that it cannot be demanded as a right by the accused.
4. The section 437 CrPC ( Code of Criminal Procedure 1973) lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc. and carves out exceptions for minors , women etc.
5. Section 438 CrPC also lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.
The Hon'ble Supreme Court of India has mentioned several other criteria as factors to be taken into consideration when granting bail in non-bailable offences, these factors includes but not limited
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to probability of recommission of the offence, possibility of frightening witnesses, probability of evidences being tampered, the seniority of the accused and his consequent circles of influence in affecting the investigation if released.
Landmark cases on the factors to be taken into consideration while hearing bail application are State through CBI v. Amarmani Tripathi AIR 2005 SC 3490, Gurcharan Singh v. State of Delhi, AIR 1978 SC 179. there are catena of judgement which specifically states that "bail is a rule and jail is the exception".
That means apart from the above noted factors ‘bail not jail’ should be the thumb rule, implying that as far as possible the Courts must try and grant bail and only in exceptional circumstances can bail be refused.
Bonds : It deals with section 440 – 450 of Code of Criminal Procedure, 1973 440.Amount of bond and reduction thereof.-
(1) The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.
(2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced.
441.Bond of accused and sureties.-
(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
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(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency of fitness.
442. Discharge from custody.-
(1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the orders shall release him.
(2) Nothing in this section, section 436 or section 437 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.
443.Power to order sufficient bail when that first taken in insufficient.-
If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do, may commit him to jail.
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444. Discharge of sureties.-
(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.
(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail.
445. Deposit instead of recognizance.-
When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behavior, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond.
446. Procedure when bond has been forfeited.-
(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
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Explanation.- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code.
(3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence is proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
447. Procedure in case of insolvency or death of surety or when a bond is forfeited.-
When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of section 446, the Court by whose order such bond was taken, or a Magistrate of the first class may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order, and if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original order.
448. Bond required from minor.-
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When the person required by any Court, or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.
449. Appeal from orders under section 446.-
All orders passed under section 446, shall be punishable,-
(i) in the case of an order made by a Magistrate, to the Sessions Judge;
(ii) in the case of an order made by a Court of Session, to the Court to which an appeal lies from an order made by such Court.
450. Power to direct levy of amount due on certain recognizances.-
The High Court or Court of Session may direct any Magistrate to levy the amount due on a bond for appearance or attendance at such High Court or Court of Session.